Monday, July 29, 2013

Sexual Harassment Roundup

Here is a summary of some of this month's decisions in Title IX cases involving sexual harassment in assault:

A student who was sexually assaulted at Duke appealed the lower court's dismissal of her case, which we had earlier blogged about here. The Fourth Circuit Court of Appeals affirmed the lower court's ruling because most of the events which constituted her claim of deliberate indifference, including the university's meager investigation of the assault, took place more than three years before the student filed her lawsuit against the school. Accordingly, Duke was protected by North Carolina's 3-year statute of limitations. Rouse v. Duke University, 2013 WL 3828308(4th Cir. July 25, 2013).

A federal district court in Michigan denied a school district's motion for summary judgment in a case involving claims that a mentally disabled student was sexually assaulted ("kissing and groping") by a paraeducator. The court reasoned that a factual dispute regarding whether the student's parent reported this to school officials required a jury to resolve. Griffin v. Sanders, 2013 WL 3788826 (E.D. Mich. July 19, 2013).

A teacher claimed he was fired in retaliation for reporting sexual harassment behavior of a colleague, as well as relaying a student's report that she was receiving inappropriate text messages from her coach. The school district argued, in turn, that it fired the teacher for legitimate reasons, including his use of profanity in the classroom and with parents, and an incident in which he brought a student to a bar and consumed alcohol in the student's presence. The district court found that there was no evidence showing that there was a causal relationship between the teacher's reports of sexual harassment/misconduct and the school district's decision to fire him, which occurred several months apart. Bianca v. Independent School District No. 1 of Tulsa County, 2013 WL 3762895 (N.D. Okla. July 16, 2013).

After a female eighth-grader was raped in the bathroom by her male classmate, her guardian brought a lawsuit on her behalf, claiming that the school district was liable under Title IX, as well as other claims. The assailant had been soliciting girls for sex, and when he solicited the plaintiff, she reported it to a teacher's aid. The aid told her to meet the student in the bathroom, as he had requested, where she and other school officials would arrive to "catch him in the act" before anything happened. The student agreed, and met the assailant in the bathroom. Unfortunately, school officials arrived too late; a rape had already occurred. A federal district court in Alabama determined that the school district was not liable under Title IX on these facts. First, the school district did not have actual knowledge that the assailant posed a risk of sexual assault to the plaintiff, despite the fact that he had been disciplined many times before, including for incidents including sexual misconduct. The court reasoned, however, that none of those prior incidents were severe enough to constitute notice of his propensity to rape. Next, the court held that the assistant principle, who was notified of the teacher's aid proposed "sting" operation before it was carried out, and who did nothing to stop it, did not have actual notice of conduct severe enough to trigger liability under Title IX. According to the court, the plaintiff's evidence only showed that the assistant principle had knowledge of a single incident of harassment, i.e., the assailant's proposition of sex. "Indeed, as far as
Dunaway [the assistant principal] knew, BHJ [the victim] agreed to the plan and was participating in it freely
in order to catch CJC [the assailant]. Regardless of how foolish and perhaps even
negligent this plan may have been, there never was an intent to subject
BHJ to sexual harassment or assault, or even deliberate indifference to
her plight." To me this seems like an exceedingly narrow reading of what it means to act in deliberate indifference. A school official knew that a student was reporting to the bathroom, not to have consensual sex, but in order to catch a student who wanted to have sex with her, and did nothing to stop it. I don't see how this allegation doesn't at least warrant a trial on whether it constitutes deliberate indifference. At least the court retained the plaintiff's claim that school officials responded negligently to knowledge that the teacher's aid had convinced the victim to let them try to catch the assailant. A jury could award damages to the plaintiff based on that. Hill v. Madison County Sch. Dist., 2013 WL 3712330 (N.D. Ala. July 12, 2013).

A federal district court in New York dismissed Title IX claims filed in a case involving incidents of alleged sexual abuse by one Ernest H. Lorch, deceased,
occurring during the period of January 1, 1975 through December 31,
1984, when plaintiffs were members of the church-run basketball program coached by Lorch. Oddly, though, the court did not dismiss the Title IX claims for reasons you'd expect -- that a church-run basketball program is not an educational institutional subject to Title IX. Rather, it dismissed the Title IX claim because the plaintiffs have not "plead any facts establishing that they were targeted for sexual
abuse based on their race, other than the conclusory assertion that all
three Plaintiffs are African American and Mr. Lorch is Caucasian. As
such, Plaintiffs' have failed to adequately allege a claim under Title
IX, and Defendants' Motion to Dismiss this claim is granted." Of course, allegations of race discrimination are neither required nor relevant under Title IX, a sex discrimination statute. And Title IX's requirement that discrimination be "because of sex" is typically satisfied in sexual assault cases due to the sexual nature of the offense. This court is clearly confused about Title IX. Walker v. Lorch, 2013 WL 3358013 (S.D.N.Y. July 2, 2013).